arrowSection 5.4 - Provisional Voting

This topic is monitored by Moritz Law Professor Daniel Tokaji

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HAVA's History Sheds Light on Provisional Voting Dispute

Does the Help America Vote Act (HAVA) require voters who show up at the wrong precinct, but who are otherwise eligible to vote, to receive a provisional ballot? This question has become hotly contested. It is under litigation in federal court in Ohio (among other states), where Democrats are attempting to overturn a Secretary of State ruling that the availability of provisional ballots is limited to those voters who go to the proper precinct but whose names do not appear on the rolls or who lack the necessary ID. 1 

HAVA’s language is not clear on this point. Its relevant section says that individuals must receive provisional ballots if, when they go to the polls, they say that they are registered in the “jurisdiction” where they want to vote but their name “does not appear on the official list of eligible voters for the polling place” or their eligibility is otherwise disputed by a pollworker. 2 

The Democrats challenging the Secretary’s decision argue that the term “jurisdiction,” which is not specifically defined in HAVA, should be understood to mean “county” rather than “precinct” for at least three reasons. First, the term “jurisdiction” encompasses a sense of legal authority (county commissioners, etc.), which does not exist at the precinct level. Second, the word “jurisdiction” appears in the very same sentence as “polling place,” indicating that it has a different meaning. Third, the term “jurisdiction” is defined in the federal “Motor-Voter” law (upon which HAVA piggybacks in some ways), where it means the unit of state government that keeps charge of voter registration lists. All these factors, according to the Democrats, point to the conclusion that voters should receive a provisional ballot as long as they go to any polling place within the county in which they are registered, even if it is not the specific polling place designated for their particular address.

We have not seen a response from the Secretary of State yet, but we can anticipate his argument. He will likely say that the term “jurisdiction” denotes a legally defined territory or district and in this case the relevant territory is the precinct. He will argue that the use of the term “polling place” indicates that the purpose of HAVA was to let eligible voters cast a ballot if they go to the right place but for some reason they are not on the voter registration list. Congress, however, did not intend to let voters choose which polling place to go to – for example, one closer to work than to home – as long as voters choose among the many polling places available within the county where they are registered. If Congress had had this intent, the Secretary presumably will say, it would have written HAVA more clearly to let everyone know of this new development in election law.

Based solely on the text of HAVA, both sides have plausible arguments. In this situation, attorneys and judges tend to examine the “legislative history” of a law, meaning the record of its consideration in Congress leading up to its enactment. The goal of this examination is to see if Congress’s deliberative process over the law clarifies the ambiguity in the text of the law itself. Some judges, however, are skeptical about the ability of legislative history to reveal such meaning. Justice Scalia, for example, believes that since Congress enacted only the words of the statute itself, only those words should be examined to determine Congress’s intent. In looking at these statutory words, Justice Scalia considers whatever commonplace assumptions about the meaning of those words would be held by ordinary citizens at the time of the law’s enactment, but without reliance on special statements by some supporters (or opponents) of the law that were not voted upon.

With this caveat, it turns out that the legislative history of HAVA contains information of the sort that most attorneys and judges would find useful. Members of Congress, in both the House and the Senate, considered whether provisional ballots should be available to voters who go to the wrong precinct. The House evidently wished to include this mandate within the law, but the Senate apparently did not. When the two chambers worked out their differences, the result seems to be that the Senate prevailed on this point.

The evidence of the House’s position comes from a Report that was submitted to the House by its Administration Committee, which worked up the bill. 3  In explaining the purposes of the bill, the Committee Report specifically addressed the problem of voters showing up at the wrong polling place. Among the eight reasons that voters sometimes “arrive at the polling place believing that they are eligible to vote [but] are turned away because the election workers cannot find their names on the list of qualified voters,” the Report listed this one as number 4: “Voters may appear at the wrong precinct because they did not receive, or received but did not heed, a notice that their polling place had moved.” 4  The Report made clear its intent that the bill’s requirements regarding the availability of provisional ballots would encompass this particular situation (as well as the others on its list of eight): “In-precinct provisional voting enables people whose eligibility is in doubt to vote in their precinct, without having to travel somewhere else to swear they are eligible to vote, and have their registration verified in the days following the election.” 5 

The Report identified several “key advantages” of “in-precinct provisional voting” – meaning provisional voting available at the polling place where the voter shows up, rather than at the county board of elections’ central office. The first reason was that eligible voters “are no longer turned away at the polls.” The second advantage was that it would undo a situation existing in Pennsylvania (among other states) where voters must “travel to police stations to see an election judge” and then proceed to the correct polling place if there is a question about a voter’s eligibility. The third advantage was that provisional voting made election administrations “easier and more efficient,” because poll workers can simply offer voters a provisional ballot rather than entering a dispute with the voter “while other voters impatiently wait in line.” All of these advantages underscore the Report’s determination that voters who mistakenly arrive at the wrong polling place should be given a provisional ballot rather than being told to travel to another location.

Although much of the language in this Report might be susceptible to a narrower interpretation – one that limited the availability of a provisional ballot only in situations in which election officials rather than the voter was in error about the voter’s eligibility to vote at the particular polling place – this narrower interpretation cannot be squared with the fact that the Report includes the circumstance in which the voter “received but did not heed” a notice from the board of elections about a change in the voter’s polling place. That circumstance is clearly one of voter, rather than administrative, error. That the Report includes it along with the situation in which the voter never received the change-of-place notice demonstrates that the Report intended for provisional ballots to be available when the voter shows up at the wrong polling place regardless of whose fault it is. This conclusion is in keeping with the Report’s overall desire to adopt a generous system of provisional voting, one which would serve as “the ultimate safeguard to ensuring a person’s right to vote” by eliminating the problem of voters “arriv[ing] at the polling place believing that they are eligible to vote” only to be turned away. 6 

The House of Representatives evidently embraced the Report’s determination on this point, since the chamber adopted the bill as reported from its Committee, and there was no discussion of this particular issue during the House’s floor debate on the bill. The relevant text of the bill in this form stated that, to meet minimum federal standards, a State must make available “in-precinct voting by every voter who claims to be qualified to vote in the State.” 7 

The Senate, however, adopted a different version of the bill – one that on provisional voting contained the same language as eventually enacted in law. 8  Republicans in the Senate, led by Senator Bond of Missouri, were very concerned about voter fraud and wanted provisions in the bill that would reduce the possibilities of fraud. Senator Bond believed that fraud had occurred in Missouri during the 2000 election, including by means of provisional voting. He thought that provisional voting had been made available to individuals who were not properly registered and therefore should not have been permitted to vote. In contrast to the House, which had adopted a robust system of provisional voting, Senator Bond wanted a more stringent one. 9  As part of a compromise to get a bill through the Senate, Bond got his way.

When it came time for the House and Senate to work out their differences, the Senate prevailed, again as a result of Senator Bond’s insistence. The statutory language on provisional voting that was ultimately adopted by both the House and the Senate was the Senate’s initial version, not the House’s. The Senate’s language, which limits provisional voting to situations in which individuals “declare” that they are “registered” in the “jurisdiction” where they wish to vote, is clearly narrower that the House’s language, which would have extended provisional voting to all individuals who “claim” to be “qualified” to vote anywhere in the “State.” Quite apart from whether there are meaningful differences between “declare” and “claim,” or “registered” and “qualified,” the term “jurisdiction” confines the scope of provisional voting in a way that the term “State” does not.

Moreover, when the Senate met to approve the final version, Senator Bond explained his understanding of the new law. This understanding specifically rejected the idea that provisional voting would be available to those who go to the wrong polling place. Here are Bond’s words on this point:

“[I]t is inevitable that voters will mistakenly arrive at the wrong polling place. If it is determined by the poll workers that the voter is registered but has been assigned to a different polling place, it is the intent of the authors of this bill that the poll workers can direct the voter to the correct polling place. In most States, the law is specific on the polling place where the voter is to cast his ballot. Again, this bill upholds state law on that subject.” 10 

In making this point, Bond explained that the new provisional voting procedures mandated by Congress were limited to the situation in which a registered voter’s name had been improperly removed from the list of registered voters due to a mistake by election officials: “No voter will be turned away from the polls because of a mistake or oversight at the administrative level.” 11  Otherwise, according to Bond, voters must comply with all relevant state laws in order for their ballots to be counted, including the obligation to vote at the proper location designated by state law: “It is not the intent of the authors to overturn State laws regarding registration or state laws regarding the jurisdiction in which a ballot must be cast to be counted.” 12 

Senator Bond subsequently repeated this same point in response to a question from Senator McConnell of Kentucky: “the provisional ballot will be counted only if it is determined that the voter was properly registered, but the voter’s name was erroneously absent from the list of registered voters.” Then, to emphasis the point even further, he immediately added: “This provision is in no way intended to require any State or locality to allow voters to vote from any place other than the polling site where the voter is registered.” 13  Bond could hardly have been clearer about his understanding of the law on this issue.

(Interestingly, in May 2001, when Congress was beginning to think about election reform in the wake of the 2000 debacle, Senator McConnell expressed a very different purpose about new federal legislation he hoped to support. As he then described his vision of provisional balloting, he said “no one [would be] prevented from voting because of voter roll mistakes or because the voter went to the wrong precinct.14  But when it came time for the Senate’s final consideration of the new legislation, McConnell did not stick to his initial position or otherwise disagree with Senator Bond’s response to his question about the effect of the new law.)

In the course of the Senate’s deliberation on the final version of HAVA, in which many Senators rose to discuss the House-Senate compromise, none disputed Bond’s understanding. On the contrary, Senator Dodd of Connecticut, who was leading the efforts of the Democrats in the Senate on this bill, essentially confirmed Bond’s position. Dodd himself stressed: “Whether a provisional ballot is counted or not depends solely on State law, and the conferees clarified this by adding language . . . stating that a voter’s eligibility to vote is determined under State law.” 15 

The closest Dodd came to undercutting Bond’s position was to observe that one of the reasons that election officials might mistakenly remove a name from the list of eligible voters for a particular precinct was an error as a result of redistricting. As Dodd explained, if a pollworker challenges a voter’s eligibility to vote at a particular polling place because the pollworker has “questions about the voter[’s] eligibility to vote based upon reassignment pursuant to state re-districting laws,” but the voter believes that he or she is eligible to vote at that location, then HAVA requires that the voter receive a provisional ballot. 16  But Dodd’s account does not contradict Bond’s assertion that the voter is not entitled to cast a provisional ballot, which will count in the election, if the voter rather than the pollworker is mistaken about where the voter is supposed to vote under state law.

Putting together what both Bond and Dodd said presents a practical problem. A voter may be confident that he or she is at the right polling place even after challenged by a pollworker who thinks the voter should go elsewhere because of redistricting. At the time, there is no way to resolve for sure on the spot who is right and who is wrong. According to Dodd, in this situation the voter is entitled to insist on a provisional ballot. But, as Bond presents it, if the voter turns out to be mistaken, because state law provides that this voter was supposed to cast a ballot at a different location, then the provisional ballot that this voter received will not count. The risk of error, therefore, lies with the voter, and so the voter better go to the polling place that the pollworkers say is the proper one.

Of course, it is conceivable that a voter could get bounced around from one polling place to another, where at each one the pollworkers think the voter is in the wrong place. In this circumstance, the voter has no idea what to do in order to protect against the risk that his or her vote ultimately will be discarded under state law. If the voter guesses incorrectly, the voter loses. One might think that going to the polls should not be a gamble about whether one’s vote will be counted. But it seems as if, under the system of provisional voting adopted as a result of the bargain struck as a result of Senator Bond’s leverage over the process, a voter has no fail-safe way to cast a provisional ballot if there is genuine uncertainty among all concerned about where a particular voter should vote.

Perhaps, to address this problem, a voter could cast two or more provisional ballots at multiple locations, in the hope that one of them is the right place according to state law. (This provisional ballot would get counted under Senator Bond’s view, because the failure to include the voter on the official list for this location would have been the state’s administrative error, whereas the other provisional ballots cast by the same voter elsewhere would be discarded.) But HAVA’s legislative history, as far as one can tell, does not contemplate this possibility.

Instead, both sides on this point appear to agree that individuals are to cast at most one provisional ballot each. The House proponents of their more generous approach believe that only one provisional ballot would ever be necessary to guarantee that an eligible voter is able to participate in the election (and they specifically want to avoid the need for the voter to travel from place to place on election day in the frustrated attempt to cast a valid ballot). Senator Bond, on his more restrictive view, evidently believes that no one could never be entitled to cast multiple provisional ballots, because he insists that individuals wishing to cast a provisional ballot must first sign a sworn statement – an affidavit – attesting to their belief that they are registered to vote in that particular location. Presumably, an individual honestly can swear to this belief with respect to one location only. Thus, under Bond’s view, individuals have one shot to cast a provisional ballot: they can go to the place where they think they are entitled to vote, and if they are correct, then the new federal law will require the States to count their ballots even if (as a result of administrative error) their names do not appear on the list for that location; otherwise, however, they have no federal guarantee.

Senator Bond’s understanding of the new law also went essentially unchallenged during the House’s final consideration of the House-Senate compromise. Comments about the law mostly conformed to the idea that its provisional voting rules protected voters against mistakes made by election officials. Occasionally, there were remarks that suggest that the reach of these rules went further, to guarantee that voters who go to the polls will not be turned away without the ability to cast a provisional ballot, whatever the reason for the discrepancy between the voter and the election officials concerning the voter’s eligibility. For example, Rep. Conyers said that in “any election dispute” the voter is “protected,” so “that one is not sent to a phone number that nobody ever answers or a building where the office is closed.” 17  Likewise, Rep. Shakowsky echoed that voters “will not have to go to a police station or leave the polling place in order to get their provisional ballot.” 18 

The comment most contrary to the Senator Bond’s perspective came from Representative Jones of Ohio. She referred to the experience of voters in the state’s 11th congressional district during the 2000 election. “Because of a 1996 State law cutting Cleveland precincts by a quarter, their polling places had been changed.” Although the local board of elections purportedly notified residents of this change, many voters said they never received the notice. They showed up at their usual polling places expecting to cast a ballot without difficulty. Instead, they were turned away without even the opportunity to cast a provisional ballot. Rep. Jones argued that these voters “should have been given provisional ballots, to be certified later,” and she urged HAVA’s enactment on the premise that it would guarantee the availability of a provisional ballot in this situation. 19 

Rep. Jones undeniably had an understanding of HAVA inconsistent with Senator Bond’s. She would have mandated the availability of a provisional ballot when a voter is mistaken about which polling place is the correct one, whereas Senator Bond unquestionably would not. Although the resolution of this inconsistency cannot be entirely free from difficulty, perhaps the best explanation is that Rep. Jones was basing her remarks on an understanding of the bill as it had originally passed the House but had since been superseded by the House-Senate compromise. In any event, since the Senate’s version of the bill was the one that ultimately prevailed, and since Senator Bond was a leader of the bill’s consideration in the Senate, it makes sense to credit his understanding of the bill (although one might consider it dubious on policy grounds) if the inconsistent understandings cannot otherwise be reconciled.

Perhaps additional investigations into the legislative history of HAVA will further illuminate Congress’s intent regarding provisional voting and the problem of voters appearing at the incorrect precinct. This initial analysis has been based on a relatively quick reading of the relevant Committee Reports and Congressional Record. It is possible, for example, that an examination of the hearings held by the responsible committees will reveal more about the matter.

In the meantime, however, the weight of the evidence suggests that the better view of Congress’s intent behind HAVA is that Congress did not mean for the new law to require provisional voting in the situation in which the voter mistakenly goes to the wrong polling place. Instead, it appears that, although the House wanted this result, the Senate was successful in resisting its inclusion. While one might find this conclusion objectionable for the simple reason that (as described above) it leaves voters without safeguards in situations of uncertainty, HAVA was a compromise between those who wanted provisional voting to give voters complete insurance and those who wanted more limited protection. This understanding of the compromise, although susceptible to questioning based on what transpired in the House, is perhaps the one most faithful to the dynamics of the congressional process taken as a whole.

[Posted: October 5, 2004]

Notes

1. The Sandusky County Democratic Party v. Blackwell, No. 3:04cv7582 (N.D. Ohio).

2. 42 U.S.C. § 15482(a). The next section of HAVA cross-references this one by saying that anyone “who desires to vote in person” but who does not have the requisite ID “may cast a provisional ballot under section 15482(a).”

3. H.R. Rep. No. 107-329(I) (Dec. 10, 2001) (to accompany H.R. 3295).

4. Id. at 38 (emphasis added).

5. Id. at 37.

6. Id. at 37-38.

7. H.R. 3295, § 502(3), as enacted by the House on Dec. 12, 2002.

8. H.R. 3295, § 102(a), as enacted by the Senate on April 11, 2002. This section, like 42 U.S.C. § 15482(a), states: “If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote . . . but the name of the individual does not appear on the official list of eligible voters for the polling place,” then the individual is entitled to receive a provisional ballot.

9. 148 Cong. Rec. S2517.

10. 148 Cong. Rec. S10491.

11. Id.

12. Id.

13. Id. at 10493.

14. News conference, Federal News Service (May 15, 2001) (available on Lexis/Nexis).

15. Id. at 10504.

16. Id.

17. 148 Cong. Rec. H7843

18. Id. at 7850.

19. Id. at 7852.